Findings Of Fact At all times pertinent to the issues herein, alcoholic beverage license No. 26-01841, Series No. 2-APS, was issued to Respondents, Frank D. and Estella S. Ryers, for their establishment known as the Big B Restaurant, located at 5570 Avenue B, Jacksonville, Florida. A 2-APS license permits the package sale only of beer and wine. It does not permit the consumption on the premises of beer, wine, or liquor. On March 27, 1983, Investigator Wendell M. Reeves conducted an undercover operation directed against the Big B Restaurant predicated upon reports received by Petitioner that Respondents were conducting sales of alcoholic beverages not permitted by the license at the licensed premises. In furtherance of that operation, Reeves utilized another beverage agent, Van Young, in an undercover capacity to make a controlled buy of an improperly sold substance from the licensees. Prior to sending Young into the licensed premises, Reeves searched Young to ensure that he, Young, had no alcoholic beverage or money in his possession. Satisfying himself that that was the case, he gave Young $15 in U.S. currency and sent him into the licensed premises to make the buy. Young entered the Big B Restaurant at 1:00 p.m. and came out 17 minutes later. When he came out of the licensed premises, Young came over to where Reeves was waiting and turned over to him a sealed 200 ml bottle of Fleishman's Gin. Young told Reeves that he had purchased the gin in the licensed premises from a black male whose description matched that of Respondent Frank D. Byers which is contained on Respondent's application for license. Respondent Frank Byers denies making the sale. On balance, however, there is little doubt it was Respondent who made the sale, especially in light of the fact that this same licensee was issued a letter of warning by the Division of Alcoholic Beverages and Tobacco in October 1981 for possession on the premises of an alcoholic beverage not permitted to be sold under the license. Young also stated that he purchased a second bottle which he consumed on the premises with another black male. However, this evidence was in the form of Reeves' report of what was told him by Young. As such, it is clearly hearsay and can be used only to corroborate or explain other admissible evidence. Therefore, as to the allegation regarding the consumption of the gin on the premises, since it is the only evidence of that offense, it cannot be used to support a finding of fact on that allegation. It may, however, be used to explain how Young got the bottle with which he was seen by Reeves to come out of the licensed premises. Several days later, on March 30, 1983, Reeves again entered the licensed premises, where he told Respondent Estella Byers he was there to inspect the site. She opened the cooler for him and he inspected the beer inside and the cigarettes. While he was doing that, however, he noticed her take a cloth towel and drape it over something behind the bar. He went over to it, removed the towel, and found that it covered a bottle of Schenley's gin. Mrs. Byers immediately said she thought it was her husband's, Respondent Frank Byers, but another individual present at the time, Sharon Thomas, said she had taken it from her brother, who was drunk, and had put it there. Again, as to Ms. Thomas' comments, they, too, are hearsay and can only serve here to explain or corroborate other admissible evidence. In any case, after Ms. Thomas made her comment, she was immediately contradicted by Respondent Estella Byers, who again indicated she thought the bottle was her husband's. In any case, at the hearing, Respondent Estella Byers contended she did not know it was there. On balance, Mr. Reeves' testimony that she covered it with a towel while he was inspecting and the evidence of the prior warning for an identical offense tend to indicate she did know it was there and that it was unlawful for it to be there. There is, however, no evidence to establish sufficiently the reason for its being there.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2) On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ORDERED this 12th day of July, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: John A. Hoggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Maurice Graham, Esquire Suite 2 2161 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue This case concerns the entitlement of the Petitioner, Price Candy Company, Inc., trading as St. James Place, to be granted a new Series 2-COP beverage license from the State of Florida, Division of Alcoholic Beverages and Tobacco.
Findings Of Fact Beginning on June 13, 1978, the Petitioner, Price Candy Company, Inc., began the process of applying for a new Series 2-COP beverage license to be issued by the State of Florida, Division of Alcoholic Beverages and Tobacco. This license was to be issued for a premises located at 117 West Duval Street, Jacksonville, Duval County, Florida. The establishment for which this license is intended is a restaurant located in a building known as the May Cohens Building. The Petitioner leases a portion of that building from May Cohens and the balance of the building which constitutes the structure of the prospective licensed area, is controlled by May Cohens. The part of the building controlled by the Petitioner as a street entrance into the dining room area of the restaurant and an entrance from the May Cohens part of the building, which is an interior entrance to the restaurant. These entrances may be seen in examining the Respondent's Exhibit No. 1 admitted into evidence, which is the Petitioner's sketch of the prospective licensed premises which was submitted to the Respondent as a part of the application. Within this diagram are several pencilled changes to the sketch which represent the current state of the building showing an extension of a wall, thereby closing off any direct access from May Cohens to the restrooms associated with Petitioner's restaurant. On May 30, 1979, the Director of the State of Florida, Division of Alcoholic Beverages and Tobacco indicated his intent to deny the application stated that the reason was "Premises to be licensed is connected to other areas over which the applicant will have no dominion or control." As authority for that statement the Director referred to Subsection 561.01(11), Florida Statutes.
Recommendation It is recommended that the Petitioner, Price Candy Company, Inc., trading as St. James Place, be granted a new Series 2-COP beverage license. DONE AND ENTERED this 19th day of December, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: James M. Bailey, Area Supervisor Price Candy Company, Inc. 117 West Duval Street Jacksonville, Florida 32204 Daniel C. Brown, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether petitioner's application for an alcoholic beverage license should be denied because of the direct or indirect interest of John Lee Johnson, a person allegedly lacking good moral character.
Findings Of Fact In May, 1982, petitioner Betty Jean Johnson applied for a 2 APS (beer and wine) alcoholic beverage license to be used in connection with a business known as Johnson's Corner Grocery, 1400 North J. Street, Pensacola, Florida. On her application, petitioner indicated that she owned the business and that no other person had a direct or indirect interest in the business. (R-1) Prior to the petitioner filing her application, John Lee Johnson, her husband, had applied for a beverage license for the same location under his own name. When he failed to disclose his criminal history on the application, his application was denied and he was charged with the crime of filing a false official written statement. On May 12, 1982, he was convicted by the County Court of Escambia County. (Testimony of Baxley; R-3) John Johnson's filing of a false official statement supports an inference that he lacks good moral character. Petitioner did not present evidence sufficient to rebut or negate this inference. Contrary to petitioner's assertion, John Johnson has a direct or indirect interest in Johnson's Corner Grocery. He owns the underlying real property. He signs, and is authorized to sign, checks on the business account of Johnson's Corner Grocery. The business's utilities, light, water, and gas accounts are all in his name. (Testimony of Baxley, Johnson, Kelly; R-4) Petitioner, however, manage's the day-to-day operations of Johnson's Corner Grocery. On her application, she indicated that she had purchased the business for $80,000, with $25,000 down, and $55,000 financed by the Barnett Bank. She now admits that the $25,000 down payment was provided by John Johnson, her husband, and that he also co-signed the $55,000 note and mortgage. Her application, however, does not disclose Mr. Johnson's participation in the purchase and financing of, the business. (Testimony of Johnson; R-1, R-4) On November 9, 1982, three days before hearing, Mr. Johnson leased the Johnson's Corner Grocery property to petitioner for $675.00 per month for three years. The handwritten lease, which was not signed in the presence of two subscribing witnesses, states that Mr. Johnson will not be "responsible for . . . the operations of . . . [the] business." This assertion is rejected as unworthy of belief in light of his extensive involvement in purchasing and setting up the business, and his continuing access to its funds. (P-1)
The Issue Whether respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.
Findings Of Fact Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 3231-A West Broward Boulevard, Ft. Lauderdale, Florida. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Ray Russell, whose address was 200 S. E. 6th Street, Ft. Lauderdale, Florida 33301. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or shareholders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (DABT Ex. 1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p. 6). Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commenced the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked. DONE and ENTERED this 26th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, revoke alcoholic beverage license number 23-1341, Series 2-COP, held by Maritza Garcia, d/b/a Maritza's Pub. RECOMMENDED this 23rd day of May, 1985 in Tallahassee, Florida. Hearings 1550 Hearings J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 FILED with the Clerk of the Division of Administrative this 23rd day of May, 1985.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the stipulations of the parties, the documentary evidence presented and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Ceola Virginia Cutliff is the holder of Alcoholic Beverage License No. 23-06844, Series 2-COP, for a licensed premises known as Club Night Shift, located at 6704 N.W. 18th Avenue, Miami, Dade County, Florida. On or about September 18, 1987, Division of Alcoholic Beverages and Tobacco (DABT) Investigators R. Campbell, R. Thompson and C. Houston entered the licensed premises as part of an ongoing narcotics task force investigation. An individual named "Frances" was on duty at the bar. The investigators observed Frances sell what appeared to be narcotics to several patrons on the licensed premises. At approximately 7:50 p.m., Investigator Houston approached Frances and asked to purchase narcotics. Frances and Investigator Houston then went to the rear of the bar where Frances sold 2 pieces of "crack" cocaine to Investigator Houston for $10.00. Approximately fifteen minutes later, Investigator Campbell asked Frances if he could purchase narcotics. Frances presented a piece of rock cocaine which Investigator Campbell purchased for $5.00. This transaction took place in plain view of other individuals in the licensed premises. Frances, upon making a sale, would take the money and give it to a black male called "Spider" a/k/a Arthur Dorsey. Spider would then retain the money. On September 19, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. On duty that night, was a black female known as "Josephine". Spider was also on the licensed premises positioned in the D.J.'s booth, apparently trying to fix a speaker. Houston and Thompson had observed a black male, named "Gary", exchanging an unknown substance for money with various individuals, immediately outside the licensed premises. Gary, upon receiving money in exchange for the unknown substance, would go into the licensed premises and hand the money to Spider. Later that evening, Investigator Houston noticed that Spider had a brown paper bag in his hand. Gary and Spider proceeded to the bathroom on the licensed premises. After exiting the bathroom, Gary left the premises and Spider went behind the bar and began counting a large amount of money onto the counter of the bar. Spider placed the money in his back pocket. Investigator Thompson then inquired whether Spider could sell him some crack cocaine. Spider acknowledged that he could and proceeded with Thompson to the rear of the bar, where Spider sold Thompson 20 pieces of rock cocaine for $100.00. On September 22, 1987, Investigators Houston and Thompson again entered the licensed premises known as Club Night Shift. Bartender Josephine-was on duty at that time along with another black female known as "Niecey". When the investigators inquired as to the whereabouts of Spider, Niecey replied that "he went home to cook up the stuff because they were very low on supply." Niecey reiterated the above statement on numerous occasions when individuals would enter the bar searching for Spider. At approximately 10:30 p.m., Spider appeared on the licensed premises with a brown paper bag in his possession. Patrons that had been waiting outside the premises came inside and Niecey locked the doors to the front and rear exits of the bar. Spider went to the D.J.'s booth and pbured the contents of the paper bag onto the counter inside the booth. The bag contained approximately 200 small zip-lock bags containing suspected crack cocaine. The patrons who had been waiting outside for the arrival of Spider then proceeded to line up in front of the D.J.'s booth in order to make purchases. Niecey would take the money from the individual patrons and Spider would deliver the crack cocaine. Investigator Houston got in line and upon arriving at the booth, purchased 20 packets of crack cocaine from Spider in exchange for $100.00. These transactions took place in plain view on the licensed premises. On September 23, 1987, Investigators Houston, Thompson and Campbell entered the licensed premises known as the Club Night Shift. The barmaid on duty was Josephine. Spider was positioned in the D.J.'s booth making sales to patrons of what appeared to be crack cocaine. Investigator Campbell walked over to the D.J.'s booth and asked to purchase ten (10) pieces of crack cocaine from Spider. Approximately 200 zip-lock packets of suspected crack cocaine were positioned in front of Spider. Spider motioned for Campbell" to pick them out." Campbell then picked out ten (10) packets in exchange for $50.00 which he gave to Spider. This transaction occurred in plain view of other individuals on the licensed premises. Before leaving Spider went behind the bar, obtained a .357 magnum pistol, placed it inside his pants and exited the premises. On September 29, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. The bartender on duty was Josephine. Shortly after the investigators arrived, Spider appeared on the premises and went behind the bar where he took a pistol from inside his pants and placed it under the bar counter. Spider then removed a brown paper bag from under the bar counter and went to the D.J. s booth. Investigator Thompson proceeded to the D.J.'s booth and asked to purchase two (2) large pieces of crack cocaine. Spider reached into the bag and gave Investigator Thompson two (2) large pieces of crack cocaine in exchange for $100.00. On October 3, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Investigator Campbell approached an unknown black male who Campbell had seen selling narcotics on prior occasions. Campbell made inquiries relative to the purchase of cocaine and the unknown black male indicated that he could sell Campbell crack cocaine. The unknown male then gave two five dollar ($5.00) pieces of crack cocaine to Investigator Campbell in exchange for $10.00. This transaction took place in plain view on the licensed premises. On October 6, 1987, Investigators Campbell and Thompson again entered the licensed premises known as the Club Night Shift. Shortly after the investigators arrived, they observed Spider on the premises selling crack cocaine to patrons from the D.J.'s booth. Subsequently, Investigator Thompson went to the D.J.'s booth and asked to purchase twenty (20) pieces of crack cocaine. In response thereto, Spider left the licensed premises and proceeded to a pickup truck parked outside. Spider then retrieved a brown paper bag from the vehicle, returned to Investigator Thompson and handed him twenty (20) pieces of crack cocaine in exchange for $100.00. The substance purchased on this occasion was laboratory analyzed and found to be cocaine. The Respondent licensee admitted to being an absentee owner. The Respondent did not maintain payroll, employment or other pertinent business records. The licensee was aware that drugs were a major problem in the area surrounding the premises and that drug transactions were known to take place immediately outside of the licensed premises. The licensee did nothing to prevent the incursion of narcotics trafficking onto the licensed premises. The licensee, CeoIa Cutliff, is engaged to Arthur Dorsey. Ms. Cutliff gave Mr. Dorsey a key to the premises and knew or should have known that he was operating in the capacity of a manager on the licensed premises. Josephine, the bartender generally on duty, referred to Mr. Dorsey as "boss man" and Mr. Dorsey directed her activities in the licensed premises. Mr. Dorsey a/k/a Spider utilized the licensed premises as if they were his own and was operating in the capacity of a manager at the Club Night Shift.
Recommendation Based upon the foregoing, it is recommended that Respondent's beverage license 23-06844, Series 2-COP, located in Miami, Dade County, Florida, be revoked. DONE and ORDERED this 12th day of November, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4482 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in substance in Finding of Fact 1. 2. Adopted in substance in Finding of Fact 2. 2. (Petitioner has two paragraphs numbered 2) Adopted in substance in Finding of Fact 3. 3. Adopted in substance in Finding of Fact 4. 4. Adopted in substance in Finding of Fact 5. 5. Adopted in substance in Finding of Fact 6. 6. Adopted in substance in Finding of Fact 7. 7. Adopted in substance in Finding of Fact 8. 8. Adopted in substance in Finding of Fact 9. 9. Adopted in substance in Finding of Fact 10, 11 & 12. Rulings on Proposed Findings of Fact Submitted by the Respondent (None Submitted). COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 R. Scott Boundy, Esquire 901 E. Second Avenue Miami, Florida 33132 Honorable Van B. Poole Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Daniel Bosanko Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Notice To Show Cause and, if so, what penalty, if any, should be imposed.
Findings Of Fact Respondent, Jose B. Medina ("Medina"), holds alcoholic beverage license number 16-07324, series 2-COP. The licensed premises are known as C.J.'s Pizza and Subs C.J.'s is located at 5150 Coconut Creek Parkway, Margate, Broward County, Florida. In June of 1990, Detective Bukata of the Broward County Sheriffs Office (BSO) conducted an undercover narcotics investigation involving Medina and C.J.'s Pizza and Subs. Detective Bukata negotiated with Medina several times at C.J.'s for the purchase of several kilograms of cocaine. However, a transaction was never consummated due to Medina's requirement that approximately $46,000.00 in cash be paid in advance. After several unsuccessful attempts at negotiations, Detective Bukata referred the open investigation to his partner, Detective Barnhouse, sometime in the spring of 1991. This was due in part to new information being obtained from confidential informants as well as Medina's reputation in the community for dealing in stolen property. On or about May 28, 1991, two "Uzi" semi-automatic pistols were stolen in a residential burglary in Coral Springs, Florida. Subsequently, Detective Barnhouse was notified by a confidential informant that Medina offered to sell these weapons for $250.00 each. On May 30, 1992, Detective Barnhouse purchased the two semi-automatic pistols from Medina at the licensed premises. The serial numbers on the weapons were identical to those which were stolen in the burglary. The weapons were still in their original packaging and had a price tag of $875.00 each. Medina offered to sell Detective Barnhouse more stolen weapons and was instructed not to deface the serial numbers. Medina either knew or should have known that the weapons were stolen. In June of 1991, Detective Barnhouse began conducting negotiations with Medina regarding the purchase of several kilograms of cocaine. Detective Barnhouse met several times with Medina at C.J.'s, had several telephone conversations, and openly displayed several thousands of dollars in an attempt to purchase cocaine. However, as in Detective Bukata's prior dealings with Medina, the negotiations were stalled due to Medina's cash advance requirement. On August 23, 1991, Detective Barnhouse offered to purchase a smaller quantity of cocaine from Medina. Subsequently, Detective Barnhouse met with Medina at the licensed premises and was shown two plastic bags containing approximately sixty grams of cocaine. After the display, Medina returned the cocaine to a storage area in the kitchen. Subsequently, he was arrested by Detectives Bukata and Barnhouse. The substance displayed by and subsequently seized from Medina tested positively as cocaine during field testing. Laboratory tests confirmed that contents of the packages was cocaine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the alcoholic beverage license held by Respondent, Jose B. Medina, d/b/a C.J.'s Pizza and Subs, license number 16-07324, series 2-COP, be revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of February, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1992.
Findings Of Fact The Respondent, Cornelia T Brown, doing business as the Oasis Restaurant Bar and Lounge, is the holder of beverage license No. 45-356, Series 2-COP. This license allows the consumption of alcoholic beverages on the premises, located on Douglas Road, Groveland, Florida. The Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco, is an agency of the State of Florida which has its responsibility the licensure and regulation of beverage license holders in the State of Florida. On June 12, 1980, pursuant to a search warrant, Lake County Sheriff and Groveland Police officials accompanied by Petitioner's Beverage Officer, conducted a search of the licensed premises. Respondent was present throughout the investigation. Among the items seized as suspected controlled substances were seven plastic baggies and eight small manila envelopes containing a total of 52.1 grams of cannabis. Currency in the amount of $2,273,67 was also seized. The cannabis and currency were contained in a purse belonging to Respondent. The purse was discovered in the kitchen of the licensed premises, an area not open to bar/restaurant patrons or other members of the public.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violations as alleged in Counts 1, 2 and 4. It is further RECOMMENDED that County 3, which duplicates County 2, and Count 5, be DISMISSED. It is further RECOMMENDED that Respondent's License No. 45-356 be REVOKED. DONE AND ENTERED this 30th day of September 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September 1981. COPIES FURNISHED: Cornelia T. Brown Route 1, Box 350-7 Groveland, Florida 32736 James N. Watson, Jr., Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether petitioner's suspension of respondents' license should be terminated or extended, or whether other disciplinary action should be taken against the license for the reasons alleged in the notice to show cause?
Findings Of Fact Respondents Raymond and Gwendolyn House hold alcoholic beverage license No. 27-00177, Series 4-COP, for Ray's Lounge & Package at 501 East Baars Street in a crime-ridden section of Pensacola, Florida. Until petitioner closed them down on October 27, 1991, as far as respondents and their managers knew, the licensed premises stood, in recent times, like an island in a veritable sea of open illegality. Mrs. House stationed security guards in front of the lounge, and assigned them the duty of keeping undesirables out. Young people ignore "no loitering" signs in the area and congregate on street corners, spilling into the street, blocking traffic and keeping "older folks" from passing. In the neighborhood outside respondents' establishment, drug sales take place in plain view of passersby. Although the authorities have closed the lounge, these problems persist. Except on Saturdays and Sundays when her husband opened the bar, Mrs. House arrived at ten in the morning and stayed until seven or eight at night, when she turned things over to the assistant manager, Ernestine Dunklin, or to her son Michael. Sometimes she came back after supper. The parents of six grown children, one of whom was allegedly prosecuted for selling heroin in the lounge in July of 1982, Mr. and Mrs. House have owned Ray's Lounge & Package for 18 years. Mr. House, who has worked at the Naval Air Station for two decades, leaves most of the management to his wife. Maggie Baldwin, who had worked at Ray's Package & Lounge for the last 15 years, arrived at seven and stayed until closing. She usually sat just inside the entrance, where she checked younger patrons' IDs. Neither Ms. Baldwin, Ms. Dunklin nor Ms. House has ever seen drugs used or distributed inside the lounge, or anybody appearing to use or sell drugs there. In the last few months, young women named Brenda and Senora worked at the lounge. Mario, another of the Houses' four sons and a full-time "installer" for Cox Cable, filled in for Ernestine Dunklin on August 24, 1991, when she was away at a cousin's wedding, but he has not worked at the lounge since. Like his brothers Raymond Jr., and Herman, he sometimes patronized the bar. On the night of September 1, 1991, however, Mario House was at home. John Anderson "Bud" McCants, who looked to be in his fifties, spent a lot of time at the lounge, where he was permitted to "bus" tables for tips. Although never on respondents' payroll, he also acted as a waiter, bringing drinks to patrons' tables and taking their money to a barmaid who (unlike him) was authorized to operate a cash register. He ran errands for Ms. House and often drove her home from the lounge. For these services, she paid him in cash. Many people who frequented Ray's Lounge & Package, in some cases three or four times weekly, among whom are Barbara Livingston, Helen Gaines, Randy Jean Peeples Broughton, and professional people including a doctor, an engineer, and Elmer Jenkins, a retired college professor who serves on the Escambia County School Board, have never seen or smelled drugs being used or sold there. Willie James Crenshaw, who lives four or five houses from Ray's Package & Lounge, was a regular customer Sunday nights. At least then, the crowd was mostly 50-ish and older, the proprietors' generation. But young "jits" also patronized the lounge, and respondents felt constrained to take steps to keep the premises "clean." A metal sign on the front door reads: ANYONE CAUGHT FIGHTING OR USING ANY ILLEGAL DRUGS ON THESE PREMISES WILL BE BARRED FROM THIS CLUB FOR LIFE AND SUBJECT TO DUE PROCESS OF LAW THANK YOU THE MANAGEMENT Respondents' Exhibit No. 1. Inside, signs were posted "from one end to the other," including in the bathrooms, advising patrons that monitors were on the look out for illegal activities. Friends, a grandson and employees did help monitor, including occasionally checking both bathrooms. When Ms. House thought she saw drugs being sold outside, she called the Escambia County Sheriff's Department, sometimes as often as five or six times a night. Between October 26, 1990, and October 31, 1991, sheriff's deputies made 289 trips to Ray's Package & Lounge. Perhaps partly because of her calls, law enforcement officials decided to "target" Ray's Lounge & Package. Undercover Agents Dispatched Casey Roberts, a "professional contract operator" whose primary occupation since 1972 has been as a confidential informant for law enforcement, found himself idle after some 60 domestic and an additional, approximately 60 international exploits. When he asked a friend at a federal agency for work, his friend put him in touch with Ray Reed, a special assistant to Escambia County's Sheriff, Charlie W. Johnson. The Escambia County Sheriff's Department also asked to "borrow" an undercover operative from Orange County. Orange County Deputy Sheriff Julia A. Chatman arrived in Pensacola in time to accompany Mr. Roberts to Ray's Package & Lounge on August 24, 1991. Both wore "wires," microphones and transmitters that Mr. Reed and Escambia County Deputy Sheriff Roosevelt Walker, Jr. (on every occasion but two) monitored from a vehicle nearby. As it happened, August 24, 1991, was Mrs. House's 63rd birthday. Entering the bar, the agents found what Mr. Roberts described as a "happy type of environment." After a half-hour visit to the bar between four and six o'clock that afternoon, the undercover agents returned around supper time and stayed an hour and a half. The birthday celebrants had shrimp for dinner. About ten o'clock that night, undercover agents Roberts and Chatman returned a third time and purchased a small plastic bag of cocaine from Bud McCants for $40 or $50. An occasional user of marijuana and cocaine, Mr. McCants, a "known liar and cheat," also has a problem with alcohol. (But somebody else had put the Crown Royal he was accused of stealing in his jacket pocket, he testified.) The uncontroverted testimony was that Mrs. House did not know that he "did drugs." After the purchase, the undercover agents left the bar and gave the cocaine to their handlers, then returned a fourth time and bought two more plastic bags of cocaine from "Bud" McCants for $40 each. Although she was on the premises the whole time, Mrs. House was unaware of either transaction. Both occurred while the bar was crowded. Each packet was on the order of an inch square, contained approximately one gram and could be carried unobtrusively in the palm of the hand. The next day Ms. Chatman and Mr. Roberts returned for an hour or two, and found only seven or eight other customers. Mrs. House was not at the bar then. (Her husband was not on the premises on any of the occasions on which the undercover agents visited.) Casey Roberts bought two pills containing hydromorphone hydrochloride or "Dilaudid" from Raymond House, Jr. First Roberts gave Raymond $100. A little while later Raymond left the premises. As he returned, Roberts met him at the door and received the pills in a "hand exchange." On August 30, 1991, agent Roberts paid Mr. McCants $40 for cocaine, only 25 or 30 feet from where Mrs. House, unaware of the transaction, was cleaning collard greens. On September 1, 1991, Roberts bought cocaine from McCants for $50 on two separate occasions. On September 4, 1991, Roberts again bought cocaine from McCants for $50, and also bought a single pill of hydromorphone hydrochloride (delivered in a folded napkin) for $60 from Raymond House, Jr. On September 7, 1991, the undercover agents returned to Ray's Lounge & Package Store. Ms. Chatman asked Senora where she could get some "blow," by which she meant cocaine (although Senora originally understood her inquiry to relate to marijuana.) Senora spoke to Michael Collins who approached Ms. Chatman. Eventually a third person, Dave, gave her cocaine in exchange for $50. Altogether the undercover agents went inside Ray's Lounge & Package on eight separate days, as many as four times on a single day. On ten to fifteen of these trips, they failed to obtain drugs. Ms. Chatman testified that the first time she offered Raymond House, Jr. drugs, he said "No, I don't deal with that," and returned money she had thrust on him. Now facing criminal charges, he did not testify himself. Licensees Not Shown To Be Culpable Ms. House testified convincingly that she did not know anything about any of the drug transactions proven at hearing, and that she was shocked and angry when she learned of them (on or after October 27, 1991.) The other evidence is completely consistent with her testimony in this regard. Nothing in the evidence suggested that Raymond House, Sr. had any knowledge of the transactions. The respondents knew that their son, Raymond House, Jr., was accused of agreeing to sell a packet of heroin over the telephone while working in the lounge in 1982. In fact, they removed the telephone on that account. Events in 1982 resulted in administrative proceedings against their license. Petitioner's Exhibit No. 3. Petitioner also proved that, in a case of mistaken identity, Bud McCants was arrested in 1986 on the licensed premises; and that, as it turned out, he had a single marijuana cigarette on his person at that time. But the evidence did not show that respondents knew about the marijuana (which had not occasioned the arrest.) Except for reports months and years earlier of drug use or dealing by patrons, the evidence did not clearly and convincingly show that respondents had reason to know (before October 27, 1991) of any illegal activity on the licensed premises since 1982, much less than they condoned, encouraged or fostered it. Mrs. House responded diligently and appropriately to any report of illegal activity that reached her, as far as the credible evidence showed.
Recommendation It is, accordingly recommended that petitioner terminate the suspension of respondents' license forthwith, and dismiss the notice to show cause filed against the license. RECOMMENDED this 26th day of November, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6985 Petitioner's proposed findings of fact Nos. 1, 4, 5, 8, 9, 10 and 14 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 2, 6, 11, 13, 17, and footnote 2, the evidence did not clearly establish that Raymond House, Jr. worked as a manager of the lounge or that respondents employed him in any other capacity. Credible testimony put him behind the bar helping himself to drinks, but Ms. Dunklin, who was responsible for work assignments, testified that he was not an employee, and was not ever scheduled to work; and her testimony has been credited. With respect to petitioner's proposed finding of fact No. 3 and footnote No. 1, the evidence showed that the Houses and Mr. McCants had known each other since 1968 or 1969, but not that he had worked for them continuously since then. At all pertinent times, however, the evidence did establish that he was a de facto employee of the licensees, even though not on the payroll. With respect to petitioner's proposed findings of fact Nos. 6 and 7 and footnotes Nos. 3, 4 and 5, Casey Roberts' testimony was wholly unreliable (and came to a sudden halt when he was asked to testify without referring to the administrative complaint.) His descriptions of accused sellers and others, which he rattled off with seemingly great assurance, bore no resemblance to reality. But for Ms. Chatman's testimony and that of the law enforcement officers who monitored conversations electronically, none of the transactions with Roberts would have been established. With respect to petitioner's proposed findings of fact Nos. 15 and 18, there was no evidence of drug use or drug dealing that was not carefully hidden from respondents and their managers. Bud McCants did not testify otherwise, (even though Bud McCants was brought to the hearing from jail where he is awaiting trial on charges of selling cocaine, giving him a strong incentive to cooperate with the authorities.) The fact that patrons discarded a marijuana cigarette, "suspected cocaine," and pills when the raid occurred on October 27, 1991, does not mean these items were visible beforehand, or intended for use or sale on the premises. With respect to petitioner's proposed finding of fact No. 16, the only evidence of conviction was hearsay. Respondents' proposed findings of fact Nos. 1, 2, 3, 6, 8 and 9 have been adopted, in substance, insofar as material. With respect to respondents' proposed finding of fact No. 5, respondents did not produce all the regular customers. With respect to respondents' proposed finding of fact No. 7, the monitoring officers received uninterrupted transmissions from the undercover agents' microphones, and could hear (usually loud) music as they entered the lounge, even if they did not have visual contact then. With respect to respondents' proposed finding of fact No. 10, although petitioner proved drug transactions occurred, petitioner did not prove that respondents knew this or were in any way responsible for it. COPIES FURNISHED: Thomas A. Klein, Esquire 725 South Bronough Street Tallahassee, FL 32399-1000 Leo A. Thomas, Esquire Levin, Middlebrooks, Mabie, Thomas Mayer & Mitchell P.O. Box 12308 Pensacola, FL 32501 Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
